Gay On Trial

If Perry v. Schwarzenegger reaches the Supreme Court and Boies and Olson are successful, gays and lesbians nationwide would not only have the right to marry, they stand to gain many of the legal rights they have sought for decades. Don't Ask, Don't Tell would be invalidated, as would employment discrimination against gays and lesbians. In the eyes of the law, gay people would be equal to straight people, and any legislation that discriminated against them could be challenged and easily struck down against this precedent. However, defeat could legitimize such discrimination against LGBT Americans, making it far more difficult to sue for parental or housing rights. The door to any federal litigation on marriage equality would be shut for decades.

This is risky because Boies and Olson are entering a legal no-man's land. The coalition of lawyers who fought to overturn Prop. 8 at the state level decided not to mount a federal challenge "because federal litigation puts in play the federal doctrines that as yet are underdeveloped," Pizer says. Marriage and family law tend to be state law, she explains, and the federal framework is sketchy.

It's a deeply risky strategy. But it has the educational benefit of grasping fully the discrimination in so many aspects of life that the gay minority still experiences. And it does so under the simple rubric of equality under the law, embraced by a classic conservative thinker like Olson.

It's taken almost two decades for the essentially conservative arguments of Virtually Normal to find a leading Republican champion. And yet Republicans and conservatives, if they hadn't been brainwashed by religious fundamentalism at the base and by cynicism among the elites, should have been pushing this from the get-go.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.